The judgment establishes the admissibility and reliance on medical evidence, witness testimonies, and forensic reports to prove the commission of the offense under the Indian Penal Code.

Sanjiv Khanna, J.

The appellant Sanjay Kumar has been convicted under Section 302 and 376 of the Indian Penal Code, 1860 (IPC, for short) arising out of FIR No. 542/03, P.S. Rohini, for murder and rape of the child ‘A’ aged about 5 years. He has been sentenced to Rigorous imprisonment for life for both the offences and to pay Rs.5000/- each for the two offences, in default to further undergo Simple Imprisonment of 3 months.

2. Homicidal death of Child ‘A’ is undisputed and stands proved by statements of PW10 Dr. Akhil Vohra, CMO, Saroj Hospital, Rohini Delhi, who had proved MLC (Ex. PW10/A) which records that the child ‘A’ was brought dead to the hospital at 5.40 PM on 20th August, 2003. She had abrasion mark on left side of forehead, strangulation mark on front of the neck and a cloth piece was present in the oral cavity. PW3, Dr. Mona Gupta, Consultant Obstetrics and Gynecology, was present with Dr. Renu Sharma, Saroj Hospital and had examined the child ‘A’ on 20th August, 2003 and declared her ‘brought dead’. PW3 recognized and identified the signatures and hand writing of Dr. Renu Sharma.

3. The body of child ‘A’ was subjected to post-mortem by PW12 Dr. V.K. Jha, Medical Officer-In-Charge, Mortuary, S.G.M. Hospital, Mangol Puri, Delhi. He had stated that the mouth of the child was partially open, tongue was intact and nails were blue. There was blood tinged discharge from mouth. The face was livid and swollen, the conjunctivae showed petechial hemorrhages; leniar scratches present over the neck and upper front extending up to chin; lips were abraded and bruised at mucocutaneous junction; on dissection of the neck tissues, the soft tissues lying in front of neck showed hemorrhages and there was pressure marks underlying tissue bruised on the side of the neck. On opening the neck by removal of tongue attached to the structures showed a handkerchief was filling the laryngeal pharynx. The death was caused due to asphyxia consequent to gagging of the respiratory track by foreign material (handkerchief). On the aspect whether the child ‘A’ was subject to rape, medical evaluation by PW12 confirmed the same as per postmortem report Ex. PW 12/A. Posterior forchette was ruptured showing tear laceration, liquid blood oozing from the vaginal orifice. Though the hymen, being situated high up was intact, but her vaginal muscles were bruised with swelling. PW12 opined that this was a case of forcible sexual intercourse with introduction of an adult male organ in an infantile vagina. The injuries were ante-mortem in nature.

4. In view of the post-mortem report we are not inclined to accept the submission of the learned counsel for the appellant that there was no evidence or material on record to show that offence under Section 376 was not made out as the MLC (Ex. PW3/A) of Saroj Hospital did not mention that the hymen was torn or records that on medical examination rape was made out. The internal examination and post mortem report (Ex. PW12/A) and opinion of PW12 are clear, lucid and categorical. The aforesaid opinion is also supported by CFSL reports (Ex. PW18/M and PW21/A) which have been referred to below.

5. On the question of involvement and whether the appellant is guilty of committing the said offence, we would like to refer to evidence of PW1 Anil Kumar, PW4 Renu, father and mother of child ‘A’ PW7 Javed and PW11 Devender Singh. The said witnesses are ad idem on the primary and material facts. Their testimonies are also credible, trustworthy and clearly state the truth.

6. PW1 Anil Kumar has stated that on 20th August, 2003, he along with his brother-in-law Devender (PW 11) and the child ‘A’ had gone to the barber shop of PW-7 Javed. The child ‘A’ had gone to meet her friend Diksha who was residing in the same building/property but had come back and had told them that Diksha was sleeping. The appellant who was also residing in the same building/property thereafter came and had taken the child ‘A’ with him to meet Diksha. Diksh